City of Georgetown v. Ammerman

Opinion of the Court by Judge Nunn Affirming. Appellee lias owned for several years a Rouse and lot in Payne’s addition to Georgetown, Ky., which is worth, according to the testimony, from two to three thousand dollars. Prior to the year 1909 there was an epidemic of typhoid fever in that city, and it seems the hoard of health attributed it to the fact that the- filth from the city was washed into what is known as “The Big Spring” from which the city was supplied with water. This hoard directed the city to- dispose of the filth in some other way, and it purchased about six acres of land in Payne’s Addition to the .town, on Elkhorn Creek, for a dumping ground for this filth. The six acres adjoined the lot of appellee. According to appellee’s pleadings there was continual dumping on this ground of garbage, refuse matter, filth from- closets, sinks, cess-pools, streets and other places, the carcases of dogs, liogs and other animals, dead fowls and other noxious and filthy thing, which made it almost impossible to live in her home to her great damage and to the market value of the- property. Appellant denied the- truth of these allegations, and pleaded, in effect, that even if they were true, the city was not responsible as it in that matter performed a governmental duty in compliance with the direction of' the hoard of health, and that the city was compelled to establish this dumping ground to preserve the health of the city. The court sustained a demurrer to this paragraph of the answer, and it is of this ruling that appellant first complains. According to appellee’s pleadings and proof, the city created a nuisance adjacent to her [211] dwelling. The hoard of health had no power to authorize the city to do such a thing, nor did the city of its own right have such a power. It amounted to taking ap-pellee’s property; that is, decreasing its value by injuring the use thereof, without first making just compensation to her as provided by the Constitution. No individual could have done this for his benefit, and we can see no reason why a'collection of people, a city, should be permitted to take for their benefit, property under like circumstances, without first making just compensation to the owner thereof. The court did not err in striking out this part of the answer. Appellant also complains of instruction No. 1. Ap-pellee objects to the consideration of the instructions because they are not part of the bill of exceptions. This matter, in short, is as follows: At the conclusion of the trial the stenographer transcribed his notes of the testimony, and certified same as all the evidence introduced upon the trial, and it was signed by the judge who tried the case. There were no objections or exceptions contained in this bill, nor were the instructions incorporated therein. In fact, no hill of exceptions of any kind was filed. The instructions, or what purports to be the'instructions, were copied by the clerk of the court when he made out his transcript, but no order of court appears with reference thereto showing which were given and which were refused, or whether or not appellant objected to them. Under the opinions of this court, we can not consider these purported instructions. On February 8, 1911, appellant filed an additional record which consists of the certificate of the stenographer who took the evidence at the trial who states, in effect, that when he made the original transcript of the evidence he supposed there would be a bill of exceptions filed'showing all objections and exceptions to the instructions and the action of the court thereon. He also certified the instructions given and the objections and exceptions of appellant thereto. The judge also attached his signature to this paper on February 4, 1911. The trial of the case in the lower court was had about one year prior to that date, and the time for filing a bill of exceptions had long since expired. This additional record is not a copy of the orders of the court which were actuallv made during and prior to the trial of the case which the clerk failed by [212] mistake to copy into the record when he made ont the transcript for this court. It only gives a history of what occurred during the progress of the- ease and what should have been incorporated into a bill of exceptions. This additional record has no effect. The parties lost control of this matter when the time for filing a bill of exceptions expired, therefore, we can not consider these matters. For these reasons, the judgment of the lower court is affirmed.